Kevin Yee takes an offensive trend and a publicized firing as a chance to get into the area of wrongful dismissal. You may be off the clock, but your behaviour can still get you fired.
Last week, someone was idiotic on TV. A male soccer fan in Toronto laughed along when someone nearby lobbed a sexist and derogatory remark at a female reporter on live TV. This remark was one of a running stunt that won’t die off because of a steady stream of viral videos in the last few years. In this instance, the reporter took offence and confronted the man. She called him out as the camera kept rolling.
The video of this confrontation has gone viral. In a week, it has received over four and a half million views. It has popped up in the international news. The Toronto Football Club has banned the responsible individuals from their matches. The man on camera has since been identified as an engineer at the Crown corporation Hydro One in Ontario. In a matter of days, this engineer was fired.
What has swiftly unfolded is a reminder of social media’s power. Bad behaviour is so easily documented and shared. For that particular soccer fan, this all goes on his permanent record. Videos, articles, and online chatter are all just a Google search away.
This phenomenon raises a question in the law: can an employee be fired for conduct out of the workplace? The short answer is yes. You can get fired by an employer for bad behaviour outside of the workplace.
To some, this is surprising. We may think our employer should have no say once we punch out our timecards for the day. We may steadfastly draw the line between our work identity and our personal lives. However, the reality is our out-of-work conduct can carry consequences for our employment.
In general, an employer may fire an employee on an indefinite contract of employment in two ways. They may fire an employee with cause or fire without cause. That is the employer’s right. What the law does provide, however, are remedies for the dismissed employee in certain situations.
I’ll talk about with-cause firings first. Many employers have codes of conduct for their employees. Often these have the gist of “don’t make us look bad, anytime”. Even without such a clause or code to this effect, some employees may have an unwritten legal obligation to not act in a way, even outside of work, that is morally in conflict with the job. An employee’s conduct might then breach this legal duty. For example, some employers have a higher profile such as Crown corporations. Their employees may have a legal obligations relating to out-of-work conduct if it affects their employer’s ability to maintain public confidence.
In some circumstances, an employee’s off-hours conduct can be bad enough that it constitutes misconduct whether it’s against a code of conduct or an unwritten legal duty. This would be cause that justifies termination. And if an employee is fired with cause, the employer does not need to allow for a notice period or offer any pay in lieu of that notice. The firing can be immediate.
I’ll turn to without-cause firings. An employer doesn’t need justification to fire an employee. However, the employer has obligations to that employee. The employer must give the fired employee reasonable notice of the firing. Alternatively, the employer may give the fired employee his or her pay in lieu of this notice period. In addition, the specific employment contract may have terms that address the employer’s obligations.
To the employees of the Reasonable Doubt readership: yes, this article is a bit of a downer. After all, we all need to blow off steam outside of work (and because of work!). However, we need to accept the fact that, thanks to social media and smartphones, our actions outside of the workplace are, with growing ease, reaching the eyes and ears of our employers.
So back to that Toronto soccer fan: should he have been fired? Should he have not? Since an employer has the right to fire an employee, asking whether Hydro One can fire him is not the point. A better question is asking whether Hydro One had just cause for termination. And if they fired him without cause, then did they give reasonable notice or give him sufficient pay in lieu? Of course, members of the public are only speculating here. Only the soccer fan, Hydro One, and their lawyers know.
Note: I’ve only scratched the surface here for wrongful dismissal law. This is not a fulsome discussion; there are also union protection, human rights, and employment contracts to consider. For more information on employment law and dismissals, the B.C. Employment Standards Branch and the Employment Standards Tribunal websites are a good start.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.